Apple was not, in the present motion, seeking to compel additional discovery from Google, nor was it opposing Google’s objections to Apples requests; Apple sought only to know “how Google created the universe from which it produced documents” in order to “evaluate the adequacy of [its] search”. Google initially objected based on attorney-client privilege and work-product grounds, though recognized that “courts generally have not found protection for that type of information.” See Formfactor, Inc. v. Micro-Probe, Inc., Case No. C-10-03095 PJH (JCS), 2012 U.S. Dist. LEXIS 62233, 2012 WL 1575093, at *7 n.4 (N.D. Cal. May 3. 2012) (listing cases explaining why search terms are not work product). The court considered Google’s complaint that “the impact of requiring non-parties to provide complete ‘transparency’ into their search methodology and custodians in responding to non-party subpoenas whenever unsubstantiated claims of production deficiencies are made would be extraordinary”, and that providing its list of search terms and custodians would open it to further burdensome discovery by Apple.

The court cites to The Sedona Conference Cooperation Proclamation (The Sedona Conference, Preface (Nov. 2012)) and the principles of “cooperative, collaborative, and transparent discovery”, and relies heavily on Judge Nolan’s holding in DeGeer v. Gillis, wherein Her Honor stated that “[t]he proper and most efficient course of action would have been agreement by [the third party and the defendants] as to search terms and data custodians prior to [the third party’s] electronic document retrieval.” 755 F. Supp. 2d 909 (N.D. Ill. 2010).

The court ultimately held that “transparency and collaboration is essential to meaningful, cost-effective discovery”, and such policies apply equally to parties and third-parties alike, and ordered Google to produce its search terms and custodians to Apple.

This case makes clear that search terms and custodians are not protected work product. If a third-party has to disclose search terms and custodians, certainly parties to litigation will have to do so. Courts are continuing to require greater transparency in the discovery process, and requesting and producing parties would be well-served in cooperating and attempting to reach agreement on search terms and custodians early in the discovery planning process.

The U.S. District Court for the Northern District of California unanimously adopted new guidelines regarding the discovery of electronically stored information (“ESI”). The guidelines are tools “designed to promote cooperative e-discovery planning . . . that is tailored and proportionate to the needs of [a] particular case.” The Court released:

·Guidelines for the Discovery of Electronically Stored Information (“ESI Guidelines”);

·An ESI checklist for use during the Rule 26(f) meet and confer process; and

These documents are available in full at http://www.cand.uscourts.gov/eDiscoveryGuidelines

In addition, as part of the Joint Case Management Statements filed by the parties pursuant to Civil Local Rule 16-9, the parties must certify that they have each reviewed the ESI Guidelines and confirm that the parties have met and conferred pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in the action.

The ESI Guidelines were developed to “encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Most notably, the ESI Guidelines expressly adopt the proportionality standards articulated in Fed. R. Civ. P. 26(b)(2)(C) and 26(g)(1)(B)(iii) and apply it to preservation obligations. ESI Guidelines 1.03; 2.01. The ESI Guidelines also encourage cooperation between the parties, beginning at the early stages of discovery, and the appointment of e-discovery liaisons who are versed in the technical aspects of e-discovery for the respective parties.

In an effort to aid in and further encourage cooperation between the parties, the Court created a Rule 26(f) checklist for use during the meet and confer process, which highlights the relevant areas the Court believes parties should be addressing at the 26(f) stage relative to ESI. This includes designation of information that “the party believes could contain relevant information but [] has determined, under the proportionality factors, should not be preserved.”

Finally, the Court drafted a Model Stipulated Order. The Model Order specifically calls for the parties to identify the dates and custodians for whom ESI is to be preserved, with the caveat that custodians may be added or removed as reasonably necessary. The Model Order also requires the party to designate relevant information, which, because of proportionality standards, will not be preserved. Additionally, the Model Order calls for the parties to agree on the production format and any phasing of discovery, and includes a Fed. R. Evid. 502(d) agreement that production of privileged and work-product documents will not constitute a waiver of such privilege(s). Of course, as this is a Model Order, the Court indicates in the Model Order itself its willingness to modify the Order by Stipulation of the parties or good cause.

In adopting the ESI Guidelines and Model Order, the Court attempts to provide some measure of clarity to parties of their preservation obligations; however, at least initially, this is based largely on cooperation and agreement between the parties. Still, such Model Orders and Guidelines are an important step in ensuring early communication of e-discovery issues.

The first rule of successful lawyering is that one must be a zealous advocate for his or her client. While this mantra is essential to best practice, it should not be followed to the exclusion of traditional trial etiquette. This was the message propounded by the Honorable Nan R. Nolan of the United States District Court for the Northern District of Illinois in her recent order calling for collaboration and cooperation during eDiscovery.

In Kleen Products, LLC v. Packaging Corp. of America, Plaintiffs brought a class action suit against manufacturers of containerboard charging antitrust violations under Section 1 of the Sherman Act. The first of many disputes in the litigation concerned the use of predictive coding technology, a form of computer-assisted review used to aid document search and production. Plaintiffs sparked this debate when they asked Judge Nolan to order Defendants to revamp their system of production to employ a specific kind of content-based analytics. Judge Nolan signed a joint Stipulation and Order in August, in which Plaintiffs agreed to withdraw their demand that Defendants apply this particular methodology with respect to any requests for production served prior to October 1, 2013.

In response to the current flood of motions pertaining to interrogatories and document requests, Judge Nolan’s order emphasizes cooperation and proportionality, quoting the Sedona Conference’s Cooperation Proclamation at the outset: “Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. . . . Cooperation does not conflict with the advancement of their clients’ interests—it enhances it.” These words of wisdom were directed predominantly at Plaintiffs’ most recent set of interrogatories, which, according to Judge Nolan, “violated the spirit of cooperation that this Court has encouraged.” Only three days after one of the defendants, Georgia Pacific, went above and beyond to produce certain requested information pertaining to individuals within its corporate structure who had received the litigation hold notice, Plaintiffs issued a Sixth Set of Interrogatories demanding extensive background information on each person identified. Judge Nolan referred to the proportionality standards of FRCP 26(b)(2)(C)(iii) in granting Georgia Pacific’s motion for a protective order.

Judge Nolan did, however, grant Plaintiffs’ motion to compel the production of additional document custodians directed at two particular defendants, concluding that “in an antitrust case such as this, Plaintiffs are at least entitled to a sample of lower-level and plant-level employees to determine if they possess significant and non-duplicative information.” Judge Nolan stated that while certain production requests can be found to violate the proportionality standards of FRCP 26(b)(2)(C), the party objecting to discovery must provide specific evidence to demonstrate the burden, which the defendants here failed to do.

Judge Nolan capped off the final order of her judicial career with some parting guidance to the parties, as well as the legal community at large, regarding eDiscovery propriety and protocol:

First, the approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented. Second, in multiple party cases represented by separate counsel, it may be beneficial for liaisons to be assigned to each party. Finally, to the extent possible, discovery phases should be discussed and agreed to at the onset of discovery.

Kleen Products instructs that practitioners should take heed of Judge Nolan’s suggestions and attempt to comply with the spirit of collaborative and proportional eDiscovery. While zealous advocacy remains a hallmark of legal representation, vigorous client activism and cooperative litigation are certainly not mutually exclusive.

This piece was first published on the blog From the Sidebar and is reprinted with permission.

By Hayes Hunt and Michael Zabel

Today, oral argument will be heard in Commonwealth v. Koch, a case in which the Pennsylvania Supreme Court is confronted with a question that is increasingly important: When to admit a text message into evidence at trial?

The question matters because electronic messaging – such as text messages or instant messages – is a significant and growing source of potential evidence. In 2010, an estimated 6.1 trillion text messages were sent (that’s over 200,000 messages per second). Attorneys now realize that a key piece of evidence is an exchange of text or instant messages instead of an e-mail or an old-fashioned letter.

When seeking to introduce a text or instant message at trial, one of the biggest evidentiary hurdles is establishing authenticity. (FRE 901). State and federal courts across the country have been applying FRE 901 and its state rule equivalents to text and instant messages.

How do you show that a text message from Joe Smith is a text message from Joe Smith? The answer is not as simple as “it came from Smith’s phone number.” This is no different than what is required to authenticate a handwritten letter. A letter from Mary Jones may bear her signature, but that signature could be forged. A court would likely require the proponent produce something beyond the letter itself as evidence such as a witness who could identify her signature.

Similarly, the developing case law across the country says that something more is needed for text messages and instant messages. Federal and state courts are grappling with the question of what that “something more” can be. Most commonly (and unsurprisingly), courts favor authentication by means of testimony from either the sender or recipient of the message (People v. Agudelo). In Koch, the Superior Court held that the text messages at issue were not properly authenticated because there was no confirming testimony from the senders or recipients of the disputed messages and no contextual clues within the messages themselves that revealed the identity of the sender. Interestingly, the court also rejected the idea that the defendant’s physical proximity to the cell phone when it was seized was probative of the defendant’s authorship of the text messages made days or weeks earlier.

It will be interesting to see whether the Pennsylvania Supreme Court agrees with the lower court’s analysis or opts for a different standard of authentication. Regardless of the court’s answer, however, the safest way to get a text or instant message admitted into evidence will be to produce the sender or recipient of that message at trial.

The July 5, 2012 decision of the Allegheny County Court of Common Pleas in Trail v. Lesko explores the legal landscape relating to the scope of discovery of social media.

Judge Wettick spends the majority of the Lesko opinion laying the groundwork for his holding. The opinion begins with an introduction to Facebook and social networking sites, followed by a synopsis of nine Pennsylvania cases where the discoverability of social media was at issue (many of which were reviewed here) and an overview of the law in other jurisdictions. He notes that the “consistent train of reasoning” found in the case law is to require the party seeking discovery to point to facts suggesting that relevant information may be contained within the non-public portions of a Facebook profile. While privacy settings do not offer absolute protection from discovery, it appears that they can go a long way, as courts often use any profile content that is publicly accessible to determine whether a Facebook user’s full profile is potentially relevant.

In Lesko, the plaintiff alleged serious injuries from a car accident, and the defendant originally claimed he was not the driver of the vehicle involved. In an increasingly popular attempt at debunking their opponent’s factual assertions, the parties filed cross motions to compel access to each other’s Facebook accounts.

Since the defendant denied driving the vehicle involved, plaintiff argued that postings surrounding the time period at issue were relevant to determine the defendant’s whereabouts. However, in response to Plaintiff’s Request for Admissions, the defendant admitted he was driving the car.[1] Accordingly, Judge Wettick denied plaintiff’s request, finding that the defendant’s Facebook information was no longer relevant in light of his admission.

The defendant asserted that Facebook photographs of the plaintiff socializing at a bar and “drinking at a party” cast doubt on his claim of serious injuries. The Judge was not persuaded, however, noting that since the plaintiff never alleged that he was bedridden, the photos were not inconsistent with his alleged injuries.

In possibly the most useful part of the opinion for future litigants resisting discovery requests for social networking information, Judge Wettick maps out the basis for his opinion, explaining, “I base my rulings on Pa.R.C.P. No. 4011(b) which bars discovery that would cause ‘unreasonable annoyance, embarrassment, oppression …’ This rule will reach intrusions that are not covered by any constitutional right to privacy or any common law or statutory privileges.” The Judge explained that a blanket court order to provide Facebook login information likely allows access to much more information than is relevant to the litigation, which could be particularly embarrassing for a person who thought they were only sharing such information with “Friends.” The opinion then clarifies that discovery must be unreasonably intrusive to be barred. Thus, although ordering court access to one’s Facebook account might have the unfortunate consequence of causing embarrassment, the sharing of personal information that underlies the entire concept of Facebook can negate a user’s claim to privacy.

With this overview of the current legal landscape memorialized in the Lesko opinion, it will be interesting to watch the law evolve as additional courts rule on the discoverability of social media. Regardless of what happens in the future, one aspect of the developing law has clearly emerged: if a Facebook post is publicly accessible, the user should be prepared to share that post and all related account information with anyone interested — “Friend” or foe.

[1]Question of the day: Did the defendant admit he was driving the car to avoid turning over his prized Facebook login information?

In what could be a significant opinion for federal class action defendants seeking to limit their e-discovery costs, a court in the Eastern District of Pennsylvania recently held in Boeynaems v. LA Fitness International, LLC, No. 10-2326, No. 11-2644 (E.D. Pa. Aug. 16, 2012), that plaintiffs who were seeking broad discovery regarding class certification issues – including extensive ESI requests — should share in the costs of the defendant’s discovery production.

Recognizing that the potential for a class action suit “dramatically increases the economic pressure on the defendant” and that the economic burden of discovery production regarding certification often falls primarily on the defendant, Judge Michael Baylson wrote, “[D]iscovery burdens should not force either party to succumb to a settlement that is based on the cost of litigation rather than the merits of the case.” Where there is a substantial discovery dispute prior to class certification, Judge Baylson held, “economic motivation and fairness are relevant factors in determining cost-shifting of disputed discovery burdens.”

In Boeynaems, the five individual plaintiffs had asserted deception and breach of contract actions relating to their attempts to cancel their gym memberships with the defendant. In the process of seeking class certification for what they anticipated would be a very large class, the plaintiffs sought extensive discovery from defendants. After the defendant had already provided some discovery to the plaintiffs, substantial disputes arose between the parties about the scope of remaining discovery to be provided by the defendant. Among other things, the plaintiffs sought “millions of items” of ESI (electronically stored information). The cost of production of that ESI, the court noted, was “a significant factor in the defense of the litigation.”

In determining how to allocate discovery costs between the parties, the court focused on the specific circumstances of the case. Discovery in the case was called “asymmetrical,” in that discovery production and its attendant expenses were rather small for the plaintiffs, and potentially huge for the defendant. The court noted while class determination requires a “searching inquiry” and “very detailed analysis,” the plaintiffs had already amassed a very large set of documents that were potentially probative of the class action issue. With that in mind, the court held that the plaintiffs should bear the economic responsibility of any future discovery efforts in regard to class determination:

The Court is persuaded, it appearing that Defendant has borne all of the costs of complying with Plaintiffs’ discovery to date, that the costs burden must now shift to Plaintiffs, if Plaintiffs believe that they need additional discovery. In other words, given the large amount of information Defendant has already provided, Plaintiffs need to assess the value of additional discovery for their class action motion. If Plaintiffs conclude that additional discovery is not only relevant, but important to proving that a class should be certified, then Plaintiffs should pay for that additional discovery from this date forward, at least until the class action determination is made.

Remarkably, in arriving at its decision, the court took into consideration the economic resources of the plaintiffs’ counsel. The court observed that the plaintiffs’ counsel was a “very successful and well regarded” firm, and reasoned that if that firm “believes that this case is meritorious, it has the financial ability to make the investment in discovery[.]” The court further noted that while the discovery costs were likely not recoverable from the defendant in the event of plaintiff victory,[1] the court would likely allow the firm’s “out-of-pocket costs to be deductible from any award to a class, assuming a class was certified.”

Although federal rules have allowed the courts to shift discovery costs for years, Boeynaems appears to be the first instance in which a federal court has addressed the shifting of discovery costs in a pre-class determination setting. Judge Baylson’s analysis in Boeynaems should present a useful resource to a defendant who is facing the prospect of class action litigation and seeking to limit the potential for extensive e-discovery costs.

The Second Circuit’s recent decision in Chin v. Port Authority, Nos. 10-1904-cv(L), 10-2031-cv(XAP), 2012 U.S. App. LEXIS 14088 (2d Cir. July 10, 2012), appears to have overruled the 2010 opinion from the Southern District of New York in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al, 685 F. Supp. 2d 456 (S.D.N.Y. 2010).

The Pension Committee decision, written by Judge Shira Scheindlin, was one of the first cases to recognize the importance of issuing written litigation holds. In Pension Committee,the court recognized that the failure to issue a written litigation hold constitutes gross negligence per se. See id. at 465 (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)). Although some of the plaintiffs in the case issued a written litigation hold, they did not do so until almost three years after commencing their action. Pension Commitee,685 F. Supp. 2d at 476-477. Moreover, the litigation hold was not issued until years after the Zubulake decision, in which the Southern District of New York articulated the necessity to issue written litigation holds. See id. Based on the conduct of these plaintiffs, the court noted that a jury could infer that any missing documents were relevant, and that the defendants were prejudiced due to their absence. See id. at 478.

In contrast, in Chin, the Second Circuitrejected the idea that failure to issue a litigation hold necessarily constitutes gross negligence per se,although the decision does not articulate whether the litigation hold at issue was written or oral. Consequently, the Chin decision places less of a burden on litigants to issue litigation holds.

Nevertheless, because of the potential benefits they provide, parties would be well served to continue to issue written litigation holds. Among the benefits of issuing a written litigation hold are avoiding spoliation issues and ensuring that key evidence is preserved. Further, the time, effort, and cost required to issue a written litigation hold is minimal. In addition, written litigation holds will help to protect those parties litigating in courts outside of the Second Circuit, which have not yet addressed the issue.

Reviewing a motion for sanctions for spoliation of evidence, the United States Court of Appeal for the Second Circuit rejected the argument that failure to issue a litigation hold constitutes gross negligence per se. Chin v. Port Authority, Nos. 10-1904-cv(L), 10-2031-cv(XAP), 2012 U.S. App. LEXIS 14088, at *68 (2d Cir. July 10, 2012). Instead, the Second Circuit held that failure to issue a litigation hold is just one factor in the spoliation analysis.

In Chin, the plaintiffs brought an action under Title VII of the Civil Rights Act of 1964 for failure to promote seven police officers of Asian descent. The basis for the plaintiffs’ motion for sanctions was the destruction of promotion folders that had been used as part of the relevant promotion decisions. The folders were destroyed at some point after the defendant received notice of the plaintiffs’ EEOC charge. In their motion, the plaintiffs sought an adverse inference instruction from the district court. The district court denied the motion finding that the plaintiffs had ample alternative sources of evidence and that the destruction of the promotion folders was negligent, but not grossly so.

On appeal, the plaintiffs argued that failure to issue a litigation hold amounted to gross, rather than simple, negligence. The Second Circuit rejected this argument, and held that “the better approach is to consider the failure to adopt good preservation practices as one factor in the determination of whether discovery sanctions should issue.” Id. (internal quotations omitted).

Furthermore, the Second Circuit also noted that even if the defendant’s actions were grossly negligent, the District Court was not required to give an adverse inference instruction. Instead, “a ‘case-by-case approach to the failure to produce relevant evidence,’ at the discretion of the district court, is appropriate.” Id. (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d. Cir. 2002)).

It is important to note the Chin decision does not indicate that parties should stop issuing litigation holds altogether. The absence or presence of a litigation hold is still a factor in determining whether a party’s preservation practices were so flawed as to justify sanctions. However, the decision should provide relief to any party that inadvertently fails to issue a litigation hold and faces a motion for sanctions. The Chin decision makes clear that a party’s failure to issue a litigation hold is not sufficient in and of itself to prove gross negligence and the applicability of sanctions.

Plaintiffs moved for recusal in the aftermath of Judge Peck’s February 24, 2012 order, allowing the use of predictive coding and adopting Defendant-MSL’s protocol for its use. This is the latest development in the ongoing saga of this case, the first to judicially-endorse the use of predictive coding in electronic discovery. The Defendants proposed using predictive coding to wade through the approximately 3 million electronic documents involved in the discovery.

Plaintiffs claim that recusal is warranted because Judge Peck’s “advocacy of predictive coding” renders him biased. Specifically, Plaintiffs pointed to an article Judge Peck wrote for Law Technology News, “Search, Forward,” an article Judge Peck himself called a “sign of judicial approval of predictive coding” for appropriate cases. At the first conference with the parties, Judge Peck said to the defendants, who were pushing the use of predictive coding: “You must have thought you died and went to Heaven when this case was referred to me.” Judge Peck spoke publicly in support of predictive coding as a panelist for a LegalTech conference and at several e-discovery CLEs. Plaintiffs’ also alleged improper ex-parte contact with one of the co-panelists at LegalTech, and a partner at the firm representing Defendants, Ralph Losey.

Judge Peck denied the motion for recusal, finding the motion untimely and meritless. The motion was held untimely because Judge Peck had informed both parties about his “Search, Forward” article, LegalTech speaking engagement, and his acquaintance with Losey months before the plaintiffs moved for recusal. He noted that Plaintiffs waited to seek his recusal until after he adopted MSL’s predictive coding protocol, citing agreement with a Second Circuit opinion, which held that such untimely recusal motions may be improperly used as a fall-back position to an unfavorable ruling. See, Weisshaus v. Fagan, 456 F. App’x 32, 34 (2d Cir. 2012).

Additionally, Judge Peck held the recusal motion was meritless because the parties were already discussing the use of predictive coding before the case was referred to him on November 28, 2011. Plaintiffs had been open to using predictive coding from the beginning, but disagreed with Defendants about the specific protocol. Judge Peck found the Plaintiff’s allegations that he had taken “personal offense” to Plaintiffs’ filing of objections to his rulings, had “chastised and yelled at Plaintiffs’ counsel”, and had “intimidated Plaintiffs for disagreeing with rulings” to have been taken out of context and to be insufficient to overcome a judge’s presumption of impartiality.

Importantly, the Plaintiffs “never accused Judge Peck of actual bias or sought to impugn Judge Peck’s integrity” but sought his recusal only on the basis that the facts, taken together, “create an appearance of partiality.” Apparently finding that a “reasonable person knowing and understanding all of the relevant facts” would not find such an appearance of partiality (United States v. Bayless, 201 F.3d 116, 126–27 (2d Cir.), cert. denied, 529 U.S. 1061 (2000)), Judge Peck denied Plaintiffs’ motion for recusal.

No doubt the legal community will continue to keep a close watch as the drama of Da Silva Moore continues.

Pennsylvania recently adopted amendments to its Rules of Civil Procedure that govern e-discovery practice in the Commonwealth. Although the amendments to Rules 4009 and 4011 (requests for production and the scope of discovery, respectively) use the federal term “electronically stored information,” the Rules Committee specifically did not incorporate federal jurisprudence, and instead declared that “[e-discovery] is to be determined by traditional principles of proportionality under Pennsylvania law.” Explanatory Comment A, Pa. R.C.P. No. 4009. Without the guidance of nearly a decade of e-discovery case law and detailed procedure under the federal rules, practitioners and their clients should be cautious regarding their obligations approaching and during litigation.

Pennsylvania is in the minority of states that do not adopt, in whole or in part, the federal rules governing e-discovery. As of February 2012, at least thirty states “based their new e-discovery rules on the [Federal Rules of Civil Procedure].”[1] While Pennsylvania’s new rules do not incorporate the entirebody of federal jurisprudence on e-discovery, practitioners will find the Rules’ proportionality standard somewhat familiar. In deciding discovery disputes, courts in should consider:

1. the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;

2. the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

3. the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

4. the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

5. any other factors relevant under the circumstances.

These factors are actually quite similar to those governing the scope of discovery under the federal rules: the “needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake” and the “importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Without an existing body of Pennsylvania case law to interpret the rules, federal case law will almost certainly be cited by litigants attempting to bring meaning to the new standard. The Explanatory Comment makes clear, however, that trial court judges are not bound by federal law when deciding any disputes over e-discovery.

The new rules provide standards for the Courts to resolve discovery disputes but leave litigants in Pennsylvania with almost no guidance on how to avoid such disputes entirely. The new rules do encourage cooperation amongst the parties, suggesting the use of “electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs.” Explanatory Comment C, Pa.R.C.P. No. 4009. Unlike the federal rules, however, the Pennsylvania rules provide almost no instruction on how e-discovery should be handled. In seeking electronically stored information, the requesting party must be “as specific as possible” and may state the format in which the material is to be produced. Pa. R.C.P. No. 4009.1(b); Note, Pa. R.C.P. No. 4009.11. The other responding party may produce the material in that format or object to the request. Pa. R.C.P. No. 4009.1(b). If no specific format is requested, the producing party may use a “form in which [the information] is ordinarily maintained or in a reasonably useable form.” Id. No other guidance is provided.

There is no standard in the rules with which parties can support their demands or objections during discovery. As a result, the parties may be less likely to reach agreement and more likely to seek intervention from the court. Moreover, there is no standard in the rules that provides consistent e-discovery procedures amongst the trial courts. Until a more extensive body of case law arises that interprets the new rules, each judge could be left to create his or her own procedure.

Pennsylvania has adopted a clean-slate approach to e-discovery and it will take time to develop jurisprudence that gives effective guidance to practitioners and the judiciary. The federal judicial system has spent almost ten years developing e-discovery principles since the Zubulake v. UBS Warburg decisions first addressed these issues. Fortunately, Pennsylvania can turn to an existing e-discovery practice nationwide that continues to evolve alongside new technology and methodology. As practitioners begin operating under the new rules, courts should build upon existing e-discovery scholarship to bring decisional clarity to the new Rules.[2]

[2] For example, in 2010 the Sedona Conference offered its “Commentary on Proportionality in Electronic Discovery,” including commentary on the Federal Rules. Dave Walton, co-chair of Cozen O’Connor’s E-Discovery Task Force, contributed to the dialogue as the Conference was drafting its Commentary. You can review a copy here.

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